US Attorney General: Swartz case a “good use of prosecutorial discretion”

United States Attorney General Eric Holder was grilled about the government's conduct in the Aaron Swartz prosecution at a Senate Judiciary Committee hearing on Wednesday. Sen. John Cornyn (R-TX) wrote Holder a letter in January asking Holder to look into the matter, and at the hearing he pressed Holder on whether it was appropriate to threaten a defendant with decades in prison for downloading academic articles.

Holder insisted the media had misrepresented the government's position. "A plea offer was made to him of three months before the indictment," Holder said. The attorney general said the government never intended for Swartz to serve more than six months in jail.

"Does it strike you as odd," Cornyn asked, "that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines and then offer him a three or four month prison sentence?"

"I think that's a good use of prosecutorial discretion to look at the conduct, regardless of what the statutory maximums were, and to fashion a sentence that was consistent with what the nature of the conduct was," Holder responded. "I think what those prosecutors did was consistent with that conduct."

Cornyn was not persuaded. "It strikes me as disproportionate," he said. In Cornyn's view, the government's power was "being used inappropriately to try to bully someone into pleading guilty to something that strikes me as rather minor."

What Holder avoided saying explicitly was that a three to four month sentence was available only if Swartz waived his right to a trial and pled guilty. If Swartz had insisted on exercising his right to a jury trial, the government might have sought a dramatically longer sentence.

On the other hand, Holder is correct that the government's treatment of Swartz was not unusual. The government routinely uses the threat of a long prison sentence to pressure defendants to waive their right to a trial. If Cornyn wants to avoid a repeat of the circumstances that impacted Swartz leading up to his death, he will need to champion a sweeping reform of the criminal justice system.

The better question and more elusive answer is why did the federal government have such a hard-on for this guy? I know some of his colleagues and supporters feel that the DOJ knew he was a popular figure and wanted to bring him down as a lesson to other hackers/copyright violators, but that would mean that these prosecutors would have to know something about technology, hacking and copyright law. Which they clearly do not.

What Holder avoided saying explicitly was that a three to four month sentence was available only if Swartz waived his right to a trial and pled guilty. If Swartz had insisted on exercising his right to a jury trial, the government might have sought a dramatically longer sentence.

What Ars is deftly spinning avoiding here is that the same is true for nearly every criminal trial. Unless you've done something truly heinous or blatantly malicious, the offer you'll get for pleading guilty will always be far less than the statutory maximum, or even what the Federal Sentencing Guidelines recommend. In this case, the prosecution stated that they would have asked for 7 years, per the Federal Sentencing Guidelines, if he had taken it to trial and been convicted on all counts.

Pretty sad it took a suicide to get people to notice something that's been going on for ages.

And the most vexing part of all of this, well beyond the "do not do the crime..." crowd this topic seems to gather like flies to poo, is that we'll probably see this swept under the rug without really any meaningful reform to our justice system. The sad reality is that too many folks are of the "better them than me" mindset and would much rather watch someone else suffer rather than actually doing something about it.

As long as the public majority continues to allow this "justice" system we have to operate in this fashion we will never see any meaningful change. And we'll continue to hold the record as the world's largest builder and maintainer of prisons in the world. *sigh* I swear, as more articles like this go up the more sad I get about the country that I used to hold as being "for the people" transform to "against the people". -_-

What Ars is deftly spinning avoiding here is that the same is true for nearly every criminal trial. Unless you've done something truly heinous or blatantly malicious, the offer you'll get for pleading guilty will always be far less than the statutory maximum, or even what the Federal Sentencing Guidelines recommend. In this case, the prosecution stated that they would have asked for 7 years, per the Federal Sentencing Guidelines, if he had taken it to trial and been convicted on all counts.

The article mentions that the practice of threatening the defendent with an unfairly high penalty to force a plea deal is routine. Just because it's routine doesn't make it any less bad in Aaron's case. Ideally, Aaron's case would shed light on this practice to stop it from harming others.

Also, I think it's hilarious that Ars is taking sides with Corryn, whose only interest in this matter is that it gives him ammunition against the Obama administration. Had Holder been part of a Republican administration, he would have gladly let the DOJ ship Swartz off to Gitmo with nary a peep.

What Ars is deftly spinning avoiding here is that the same is true for nearly every criminal trial. Unless you've done something truly heinous or blatantly malicious, the offer you'll get for pleading guilty will always be far less than the statutory maximum, or even what the Federal Sentencing Guidelines recommend. In this case, the prosecution stated that they would have asked for 7 years, per the Federal Sentencing Guidelines, if he had taken it to trial and been convicted on all counts.

The article mentions that the practice of threatening the defendent with an unfairly high penalty to force a plea deal is routine. Just because it's routine doesn't make it any less bad in Aaron's case. Ideally, Aaron's case would shed light on this practice to stop it from harming others.

The point is to reduce the number of cases that go to trial. If every case went to trial, people who can't make bail would serve most of their likely sentence while waiting for the trial to even happen.

On the other hand, Holder is correct that the government's treatment of Swartz was not unusual. The government routinely uses the threat of a long prison sentence to pressure defendants to waive their right to a trial. If Cornyn wants to avoid a repeat of the circumstances that impacted Swartz leading up to his death, he will need to champion a sweeping reform of the criminal justice system.

This. While it is sad that Swartz took his own life because of this, it is SOP for all judicial cases -- threaten with maximum punishment and then offer leniency by allowing suspect to plead guilty to a lesser charge. Hell, it even happens for speeding tickets -- pay the fine and get the points on your license, or plead guilty to a parking ticket and go to traffic school.

What Ars is deftly spinning avoiding here is that the same is true for nearly every criminal trial. Unless you've done something truly heinous or blatantly malicious, the offer you'll get for pleading guilty will always be far less than the statutory maximum, or even what the Federal Sentencing Guidelines recommend. In this case, the prosecution stated that they would have asked for 7 years, per the Federal Sentencing Guidelines, if he had taken it to trial and been convicted on all counts.

The article mentions that the practice of threatening the defendent with an unfairly high penalty to force a plea deal is routine. Just because it's routine doesn't make it any less bad in Aaron's case. Ideally, Aaron's case would shed light on this practice to stop it from harming others.

What "unfairly high penalty" was he threatened with? The statutory maximums of the laws he was accused of breaking? How can that be unfair, they apply to everybody who breaks those laws. The prosecution's threat to ask for 7 years, per the standard calculation that all federal prosecutors follow? You mean that's an unfair penalty for 13 separate federal felony violations (if convicted on all counts), and something that could and probably would have been reduced by the judge?

Threatening people with dozens of years in prison when the government knows very well they deserve only a few months at most is something you would expect from a police state, not a democracy.

As OROD said, this is basically extortion, and concretely I would to know (1) why this is tolerated in the US and (2) how to fix it. No legal system is perfect, but I've never heard of such absurd threats from prosecutors in Canada.

The article also fails to mention that he'd have been required to plea guilty to a felony. The consequences of having a felony conviction on your record last for much, much longer than the prison sentence, and it's a hell of a thing for a fairly young person to be stuck with. Especially for a violation that was basically trespassing and unauthorized online file-sharing.

Sadly, Aaron's death probably won't change things much. The AG's statements indicate as much. The trend has been set in the U.S. at the Federal level for some time. Conviction without trial is the preferred outcome. Use of extortionate charges and potential penalties, etc..

There are people pleading guilty to crimes they didn't commit, at the behest of their overworked public defenders, to avoid the threatened longer sentences. The system is broken at this level and the AG, like many others, thinks it's working "just fine".

Open trials and the guarantee of a defense attorney, along with other constitutional protections, are supposed to protect private citizens from the power of the state in prosecutions, but this process of avoiding trials through extortionate threats denies the accused of these protections.

Some other western countries that I know of (Canada, Britain) ameliorate this through an attitude on the part of prosecutors that recognises the power of the state and limits charges to those truly relevant to the case.

Nothing's perfect but the accused has a reasonable chance of facing a charge and sentence that is appropriate to the crime. U.S. prosecutors are viewed by some other countries as overzealous and bullying.

It's tough to defend yourself in U.S. Federal court unless you're very rich.

Pretty sad it took a suicide to get people to notice something that's been going on for ages.

Except that the angry Senator here is not noticing anything. He knows perfectly well that threats of long sentences at trial are routinely used to extract pleas. Cornyn is bashing on Holder because that's simply what Republican Senators do when the Obama administration has a misstep. He will get a few sound bites out of it (like the one in this article) then move back to budget-bashing, tax-bashing, etc. It is "sound and fury, signifying nothing".

Should the Feds have prosecuted Swartz in the first place? Probably not.Will this hearing result in any meaningful change? Absolutely not.

The article also fails to mention that he'd have been required to plea guilty to a felony. The consequences of having a felony conviction on your record last for much, much longer than the prison sentence, and it's a hell of a thing for a fairly young person to be stuck with. Especially for a violation that was basically trespassing and unauthorized online file-sharing.

Oh yes, that dreaded felony conviction that would have turned the self-employed dot-com millionaire with an apartment in NYC and a Harvard fellowship into a hero among his peers and followers. He would have been ruined for life, obviously. And it was a lot more than "trespassing and online file-sharing". It was a systematic violation of MIT and JSTORs networks over a period of 4 months.

The point is to reduce the number of cases that go to trial. If every case went to trial, people who can't make bail would serve most of their likely sentence while waiting for the trial to even happen.

The point is to do justice, not coerce people into accepting plea deals whether or not they're guilty. If that requires more court rooms, there should be more court rooms. Or maybe there should be fewer laws.

What Ars is deftly spinning avoiding here is that the same is true for nearly every criminal trial. Unless you've done something truly heinous or blatantly malicious, the offer you'll get for pleading guilty will always be far less than the statutory maximum, or even what the Federal Sentencing Guidelines recommend. In this case, the prosecution stated that they would have asked for 7 years, per the Federal Sentencing Guidelines, if he had taken it to trial and been convicted on all counts.

The article mentions that the practice of threatening the defendent with an unfairly high penalty to force a plea deal is routine. Just because it's routine doesn't make it any less bad in Aaron's case. Ideally, Aaron's case would shed light on this practice to stop it from harming others.

The point is to reduce the number of cases that go to trial. If every case went to trial, people who can't make bail would serve most of their likely sentence while waiting for the trial to even happen.

What "unfairly high penalty" was he threatened with? The statutory maximums of the laws he was accused of breaking? How can that be unfair, they apply to everybody who breaks those laws. The prosecution's threat to ask for 7 years, per the standard calculation that all federal prosecutors follow? You mean that's an unfair penalty for 13 separate federal felony violations (if convicted on all counts), and something that could and probably would have been reduced by the judge?

Any sentence more that a few months for what Aaron did is unfair, any law that allows prosecutors to ask for such a penalty is unfair, and the possibility of being convicted of 13 violations for essentially one act is unfair.

What Holder avoided saying explicitly was that a three to four month sentence was available only if Swartz waived his right to a trial and pled guilty. If Swartz had insisted on exercising his right to a jury trial, the government might have sought a dramatically longer sentence.

What Ars is deftly spinning avoiding here is that the same is true for nearly every criminal trial. Unless you've done something truly heinous or blatantly malicious, the offer you'll get for pleading guilty will always be far less than the statutory maximum, or even what the Federal Sentencing Guidelines recommend. In this case, the prosecution stated that they would have asked for 7 years, per the Federal Sentencing Guidelines, if he had taken it to trial and been convicted on all counts.

Or they could be pointing out that the US justice system has serious flaws and that they are reporting on an example of that flaw in the area that they cover news rather than avoiding that topic.

What Holder avoided saying explicitly was that a three to four month sentence was available only if Swartz waived his right to a trial and pled guilty. If Swartz had insisted on exercising his right to a jury trial, the government might have sought a dramatically longer sentence.

What Ars is deftly spinning avoiding here is that the same is true for nearly every criminal trial. Unless you've done something truly heinous or blatantly malicious, the offer you'll get for pleading guilty will always be far less than the statutory maximum, or even what the Federal Sentencing Guidelines recommend. In this case, the prosecution stated that they would have asked for 7 years, per the Federal Sentencing Guidelines, if he had taken it to trial and been convicted on all counts.

It's not so much the prosecutorial practice of using a lighter sentence to get a guilty plea. That is a commone practice. But when you couple the fact the DoJ was willing let Swartz do 3-4 months instead of 35 years with the fact that the Feds were aggressively prosecuting him for what most would see as a harmless crime (seriously, even JSTOR said it wasn't going to take legal action against him), then this whole episode takes on a new dimension. It's not spinning. It's reality.

You used the word "malicious," and that's a key word for this episode. Swartz was being prosecuted by the DoJ as a malicious hacker with intent to destroy or disrupt computer infrastructure, when in reality he did absolutely nothing of the sort. Even 7 years for downloading documents that are already free to the public seems excessive.

What "unfairly high penalty" was he threatened with? The statutory maximums of the laws he was accused of breaking? How can that be unfair, they apply to everybody who breaks those laws. The prosecution's threat to ask for 7 years, per the standard calculation that all federal prosecutors follow? You mean that's an unfair penalty for 13 separate federal felony violations (if convicted on all counts), and something that could and probably would have been reduced by the judge?

Any sentence more that a few months for what Aaron did is unfair, any law that allows prosecutors to ask for such a penalty is unfair, and the possibility of being convicted of 13 violations for essentially one act is unfair.

One act? If I break into your house and steal your stuff, run away, then come back a week later and do it again, have I committed one crime or two? Swartz committed multiple crimes against MIT and JSTOR from September 2010 to January 2011.

What Holder avoided saying explicitly was that a three to four month sentence was available only if Swartz waived his right to a trial and pled guilty. If Swartz had insisted on exercising his right to a jury trial, the government might have sought a dramatically longer sentence.

What Ars is deftly spinning avoiding here is that the same is true for nearly every criminal trial. Unless you've done something truly heinous or blatantly malicious, the offer you'll get for pleading guilty will always be far less than the statutory maximum, or even what the Federal Sentencing Guidelines recommend. In this case, the prosecution stated that they would have asked for 7 years, per the Federal Sentencing Guidelines, if he had taken it to trial and been convicted on all counts.

It's not so much the prosecutorial practice of using a lighter sentence to get a guilty plea. That is a commone practice. But when you couple the fact the DoJ was willing let Swartz do 3-4 months instead of 35 years with the fact that the Feds were aggressively prosecuting him for what most would see as a harmless crime (seriously, even JSTOR said it wasn't going to take legal action against him), then this whole episode takes on a new dimension. It's not spinning. It's reality.

No, the Feds were threatening him with 7 years. That's the fact. And JSTOR didn't drop their charges until he "returned" the data, and MIT never dropped the charges, so you can't say it was harmless.

Quote:

You used the word "malicious," and that's a key word for this episode. Swartz was being prosecuted by the DoJ as a malicious hacker with intent to destroy or disrupt computer infrastructure, when in reality he did absolutely nothing of the sort. Even 7 years for downloading documents that are already free to the public seems excessive.

Read the indictment. It describes precisely what the Feds were prosecuting him for, not what you think they were prosecuting him for.

The suicide was a sad outcome and his intent wasn't unreasonable, but he certainly knew he was committing multiple crimes at felony level. The charges were breaking and entering with the intention of committing a felony. It was a felony level due to the volume of documents he downloaded.

I read his former girlfriend's article at theatlantic.com yesterday and it sheds much light on what Aaron was going through at the time. The felony part was a big issue and may have been the primary reason for not taking the deal as he was contemplating.

Disagree if you'd like, but getting caught and prosecuted over this is something that should have been expected. It's a felony level mistake of poor judgement.

One act? If I break into your house and steal your stuff, run away, then come back a week later and do it again, have I committed one crime or two? Swartz committed multiple crimes against MIT and JSTOR from September 2010 to January 2011.

Violation, comparison of data downloading with physical theft, go back two spaces.

Threatening people with dozens of years in prison when the government knows very well they deserve only a few months at most is something you would expect from a police state, not a democracy.

As OROD said, this is basically extortion, and concretely I would to know (1) why this is tolerated in the US and (2) how to fix it. No legal system is perfect, but I've never heard of such absurd threats from prosecutors in Canada.

You don't know what you're talking aboot. There was never a "threat" of "dozens of years", eh.

Assistant U.S. Attorneys Stephen Heymann and Scott Garland were the lead prosecutors, working under the supervision of U.S. Attorney Carmen Ortiz.[14][62][78] The case was brought under the Computer Fraud and Abuse Act, which was passed in 1986 to enhance the government’s ability to prosecute hackers who accessed computers to steal information or to disrupt or destroy computer functionality.[79] “[I]f convicted on these charges,” said Ortiz, “Swartz faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.”[15]

One act? If I break into your house and steal your stuff, run away, then come back a week later and do it again, have I committed one crime or two? Swartz committed multiple crimes against MIT and JSTOR from September 2010 to January 2011.

What did he steal? And trespassing in this case shouldn't even be a federal crime.

One act? If I break into your house and steal your stuff, run away, then come back a week later and do it again, have I committed one crime or two? Swartz committed multiple crimes against MIT and JSTOR from September 2010 to January 2011.

What did he steal? And trespassing in this case shouldn't even be a federal crime.

He didn't steal anything, nor was he charged with trespassing. He was, however, charged with multiple counts of computer fraud and reckless damage of a computer or network, because he returned to MIT multiple times and repeated his criminal acts. Read the indictment.

One act? If I break into your house and steal your stuff, run away, then come back a week later and do it again, have I committed one crime or two? Swartz committed multiple crimes against MIT and JSTOR from September 2010 to January 2011.

What did he steal? And trespassing in this case shouldn't even be a federal crime.

It sounds like you're trying to imply that he didn't commit a crime at all...?

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.